No Back Pay, No Employment Contract, No Promotion

Is a federal employee entitled to back pay when he who performs in a higher graded position after his boss retires?

If you are a civil service employee, you have an appointment and not a contract to perform a job.

This isn’t our opinion. It is the opinion of the Federal Circuit Court of Appeals.

The issue arose when an employee said the government owed him more money because he served in an acting capacity in a higher level job at Hanscom Air Force Base, Massachusetts.

In this case, the federal employee, Stanton Collier, said that he served as the chief of his branch after his supervisor retired. The chief of the division was a GS-15. Collier was a GS-14 and was paid at that lower rate-even when performing the duties of his supervisor. When Collier was not selected for the supervisory job, despite having acted in the position, he filed a grievance arguing that the government owed him back pay for the 24 months he served in the higher graded job.

Collier argued that his performance plan required him to serve as the chief of the division in the absence of the supervisor. This requirement, he said, was a contract that the government had not lived up to when it paid him at the lGS-14 level.

The court said that as a civil service employee, he did not have a contract with the government and that a performance plan did not create such a contract. Instead, as a federal employee, he had an appointment to his position.

The court also said that the Back Pay Act did not apply to a federal employee who is working at a higher grade level. The Back Pay Act applies to an employee found to “have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee . . . .” Acting in a higher graded position does not fall within this definition of back pay concluded the court.

The bottom line: the employee is out of luck and does not get the higher rate of pay for the time he was the acting supervisor of the division.

You can download Collier v. U.S. from the link on the left hand side of this page.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47